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State v Asep [2018] PGNC 144; N7220 (16 April 2018)

N7220

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 841 OF 2017

THE STATE

V

MAX ASEP aka “Sepik”

Kandrian: Miviri AJ
2018: 10^th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 – plea –hands cut off-neck chopped – deceased unsuspecting – no medical report – photographs of deceased depicting injuries –deceased died result of the injuries – no self defence – no provocation – PSR MAR – recommendation not favourable – prisoner high risk– sanctity of life – deterrent & punitive sentence.

Facts
Unprovoked accused cut off both hands of the deceased. Who ran away intending to escape. Accused pursued and cut him further on his head severing it from the body attached by a thin strip of the skin. He intended to cause grievous bodily harm.

Held
Plea
Unprovoked attack
No self defence
No medical report
Photographs depicting grievous cut to hands.
Neck decapitated.
26 years IHL minus time in remand.

Cases:
Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258
Avia Aihi v The State (No 3) [1982] PNGLR 92
Angitai v The State [1983] PNGLR 185.
APP v Haha [1981] PNGLR 205
Enn v The State [2004] PGSC 36; SC738
Kovi v The State [2005] PGSC 34; SC789
Kwapena v The State [1978] PNGLR 316
Lawrence Simbe vs. The State [1994] PNGLR 38; SCRA 29 OF 2007
Nimagi v The State [2004] PGSC 31; SC74
Rapola [1988] PGNC 89[1988-89] PNGLR 487
Simon Kama v The State (2004) SC 740
State v Hagei [2005] PGNC 60; N2913
State v Mohavila [2006] PGNC 106; N3385
State v Harisu [2006] PGNC 137; N3168
State v Martin [2008] PGNC 29; N3312
State v Mongi [2007] PGNC 135; N3259
State v Yokum [2002] PGNC 24; N2337
Thress Kumbamong v The State (2008) SC 1017
Ume v. The State [2006] PGSC 9 SC 836

Counsel:

A. Bray, for the State
R. Bailey, for the Defendant

SENTENCE

16^th April, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to cutting both hands of the deceased and then cutting his head off after a short chase killing him.
   

Background

2. The deceased, three others with the accused were at a hamlet Uklaman in Amilak on the 12^th January 2017. They were working on preparing land for a garden. After which they sat down in the boy house to rest, and were talking and chewing betel nut. Accused “out of the blue” got a bush knife and cut off both hands of the deceased, who ran followed by the accused. He caught up with him and delivered a further cut severing the neck from the body. He intended to cause grievous bodily harm but the deceased died as a result.
   

Murder s 300 (1) (a) CCA

3. The charge was pursuant to Section 300 (1) (a) of the Code which prescribed the maximum of life imprisonment for the crime. Clearly showing the seriousness of the legislature upon offences of homicide, here murder. Reflecting that life is only lived once and by our Christian principles preambled in the Constitution is a gift of God, and no man has the right to take the life of another unjustly in breach of the law. As a Catholic Christian you the prisoner will understand this.
   
4. It is apparent from the evidence on file that at that time immediate to the attack the deceased was in no way threatening, or armed with a weapon which he used upon the prisoner prompting him to react as he did as in Kwapena v The State [1978] PNGLR 316 or provocation as in Angitai v The State [1983] PNGLR 185. He acted without lawful justification rendering the deceased defenceless to the knife that was delivered a second time again with deadly force and accuracy decapitating mercilessly and abruptly ending the life of his cousin the deceased.
   
5. In the evidence one Joe Rorio, a Eucharistic minister in the Catholic Church of Apilik village, Kandrian Inland, West New Britain deposed that prisoner consumes drugs and the prisoner himself confirmed in the record of interview that he consumes Marijuana. This witness deposes that prisoner had been effected by this drug hence the attack upon the deceased. There is no other credible evidence to explain his behaviour on that day other than this evidence. It is not medical evidence but is confirmed by the prisoner himself and to that extent explains the way that he behaved on this day. I hold this to be the case because the file before me has no evidence to show that the deceased had attacked him. In his confession to Police in the record of interview question and answer11 he was asked:
   

“Will you give me your statement on this incident and why you chopped him with a bush knife on both hands and his neck and killed him?”

“At that time we cut down an area of trees and bush for a garden and were resting at hamlet called Ukalam. I was with Amos and two younger ones namely Dominic and Augustine with Karol lama. We were sitting under Malmal trees. That was me, Dominic, Augustine and Amos while Karol was at the house man/ Boy.

We were sitting and I thought of what Amos did to my mother, Janitta where he stabbed my mother with a traditional knife made from the bone of a cassowary. I also recalled that Amos had chopped my right hand and his brother Michael Levon also stabbed me in the left hand. The other brother Peter Gade had also hit me in the back with a hammer. (here the accused shows two knife wounds from the left and right arm where photo shots are taken as exhibits)

All these people had intention to kill me and so I thought of this and killed him. I chopped him in both arms and his neck before he does kill me.

Question 13; why did all these people attack and injure you? “I do not know why they are against me but I heard that Levon and Amos stated that they will kill me and I was afraid that is why I was afraid and I must kill them first. There is a person called Wali who told me that these people had intention to kill me and I must watch out.

6. Question 14; Is it correct that you smoke the drug Marijuana? “Yes, at home but not here because I am in jail.
7. Question 15; Are you sorry for what you did to Amos or not? I am not sorry because he wanted to kill me and I must kill him first”

6. From this evidence it can be deduced that he knew very well where he was and with whom he was and what they were doing. Then he thought, not that his mother was stabbed with a cassowary bone there and then, forcing him to act as he did. It may have been an earlier incident, but certainly not on the time and date that he attacked as he did. Because he uses the word he thought not that he saw. There is therefore no justification in law for the way that he behaved as self defence and provocation are both inapplicable in this given situation.
7. He displays by this logical sequence and reasoning confirming that he was mentally sound very well leading to the offence. Voluntary inducement by illicit drug marijuana is not a defence to the offence as heinous as this. There is no clear evidence that he was so induced on this day of the offence in this regard. But clearly there is determined and strong defiance of the law in the way that he answered, he was not sorry for the deceased he killed. And he reasons that he did so to prevent the deceased killing him later. I killed him before he could kill me. That determination is evident in his behaviour immediate to the attack and the injuries that he inflicted were gruesome and horrific.

8. It is not the evidence on this day leading that the deceased was in possession of a bush knife or a weapon menacingly threatening at that instance holding the prisoners life in the balance prompting him to react as he did. This was a senseless and brutal killing of an unsuspecting relative which is denounced and calls for a deterrent and punitive sentence to be imposed. Reformation or rehabilitation cannot be the basis of the sentence as there is no evidence of any formal education or employment or other evidence upon which sentence can be swayed in that regard. A 20 year old man 21 now in court he is a danger to his community which must be protected in the sentence that will be passed upon him: Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258. The presentence report before the court confirms this fact that he is a threat to the community and the level of risk is very high. He is not a suitable candidate for probation or supervision as there are a lot of objections to his release on probation by the Community.
9. Because it is evident that he was a person who consumed and smoked the drug marijuana openly and sometimes was mentally disturbed after smoking it and attacked people in the village. Many survived by running away before any damage was done to them including the witness on file Joe Rorio, a Eucharistic minister in the Catholic Church of Apilik village, Kandrian Inland. This is relevant evidence of the behaviour of the prisoner prior to this offence. And his propensity to violence as a result of the consumption and smoking of marijuana. But there is no evidence that immediately before this killing on this day that was the case that he was smoking marijuana. And even if he was, this court has held that voluntary consumption of marijuana is not an excuse in favour of a prisoner, the death penalty was imposed upon a prisoner who had consumed marijuana and then killed a 7 year old girl, digitally penetrated her vagina, sodomized her and hid the body in a cave: State v Mongi [2007] PGNC 135; N3259. I determine that as good law and applicable here taking into account the facts and circumstances of the case.
   

Presentence Report

10. The defence Counsel applied for a presentence report granted and adjourned to Monday 16^th April 2018 for that report to be furnished to court. This report is not favourable to the release of the prisoner on probation. He is a risk and threat to the community according to that report. The Community objects to his release because he has behavioural problems and is violent after consumption of marijuana, which he has openly consumed. They feel safe that he is in custody.
    
11. This court has always taken due consideration of presentence reports because they are the views of the community which are relevant to the determination of an appropriate sentence upon the prisoner: State v Yokum [2002] PGNC 24; N2337; The State v Rapola [1988] PGNC 89[1988-89] PNGLR 487. I take due consideration of the report and in particular the communities views on the matter in determining an appropriate sentence against the prisoner.
    
12. You are a first time offender and that is about all to the highest in your favour. Your conduct is denounced and the community must be protected. And persons with like or similar inclinations must be deterred from committing such offences. And in this regard the Legislature has given a very wide discretion in the court in the penalty prescribed for this offence of life imprisonment. You could be sentenced to life imprisonment for this crime but the courts have stated that the maximum penalty will be given in cases which are the worst case of its kind to so draw: Avia Aihi v The State (No 3) [1982] PNGLR 92. There is no doubt that you will be sentenced to a determinate term of years in prison.

Issue

13. What is that determinate term of imprisonment upon you the prisoner?
    

Allocutus

14. I canvass starting with your allocutus where you have pleaded to be given a short term in prison so that you could go back to your family. You explained that you reacted as you did because you thought of the deceased who had earlier stabbed your mother with a cassowary bone. You wanted to take revenge so that is what you did.
    
15. Revenge does not mitigate your crime but aggravates it which has been set out in various decisions of this court and the Supreme Court: Ume v. The State [2006] PGSC 9 SC 836. And both courts have condemned and denounced with stiff penalties pursuant: State v Martin [2008] PGNC 29; N3312 Kovi v. State [2005] PGSC 34; SC789. You are not excused in law because you cut the deceased twice on the hands left and right rendering him defenceless. In this respect you knew what you were doing as what you did stopped any form of defence by the deceased. Then you chopped off his head. I consider that all these outweigh your guilty plea. The deceased was in the prime of his life aged as you were; he had a long life ahead prematurely terminated by your heinous act.
    
16. The explanation both in your record of interview and on allocutus that the deceased was planning to kill you and you killed him before that could be carried out upon you does not mitigate the offence. It aggravates the offence against you coupled with the fact that you were not deterred by the presence of the three others including a child there. The deceased did not stand any chance of survival from the way that you chased and cut him delivering the last blow cutting off his neck. Your actions are denounced in the strongest terms and your sentence will reflect that fact.
    
17. There is no psychiatric or medical report to depict the extent of your mental condition except the record of interview which depicts that you knew where you were and what you did and for what reason you reacted as you did. I have set this out in this judgement excerpts which are set out above. It shows the motive for the way that you acted which I take into account in the sentence determined upon you here.

Mitigation

18. Prisoner was 20 years old at the time of the offence and 21 at sentence, from Amilak village Kandrian West New Britain with no evidence of any formal education or employment. He was a subsistence farmer with no criminal history and was of the Catholic Church. Both your lawyer and State agree in the matters for and against drawing that your case falls into category three in Kovi v State (supra) and your case will be mid range 23 to 25 years appropriate given your facts and circumstances.
    
19. I view that to be the case by the facts and circumstances that the range of sentence is 20 to 30 years in your case being the third category there. And the relevant factors prescribed present here include, preplanning excerpts of which I have set out from the record of interview of the prisoner above showing a plan to take revenge for the actions of the deceased purportedly against prisoners mother. And I determine from the facts and evidence here that there was a high level of viciousness in the attack because it is an unsuspecting attack upon the both hands of the deceased rendering him incapable of defending himself. Then the chase persistently ending with a grievous and deadly blow to the neck decapitating the head as a result. A bush knife is a very deadly weapon as was used here given that the deceased was not in any way armed nor was he given any chance to defend himself, he was at the mercy of the prisoner who heeded non in the way he acted. Given this his plea of guilty draws nothing compared. The facts aggravating outweigh the mitigating. I do not consider that he is a youthful person and if it were so held, this court has held it to not derail where serious criminal offences are committed: Nimagi v The State [2004]PGSC 31; SC741. Youthfulness no longer a relevant consideration in serious violent offences.
    
20. The court is empowered to sentence as depicted out by each case by its own facts and circumstances and that one of the matters in consideration would be the tariff and range of sentences but these do not tie down the discretion in sentencing. And sentences for manslaughter will not be likened to murder or vice versa or wilful murder. The seriousness of each offence will be reflected in the sentence that is passed at the end but each will be determined on its own facts. A life is a life whether it be of the Prime Minister or the ordinary villager once it is taken the seriousness in considering sentence would be the same, guidelines are only that and no more: Lawrence Simbe v. The State [1994] PNGLR 38; Thress Kumbamong v The State (2008) SC1017; Simon Kama v The State (2004) SC740.
    

Extenuating Circumstances

21. I determine that there are no evidence of any extenuating circumstances, State v Hagei [2005] PGNC 60; N2913 here to deviate from the tariff and range set out in Manu Kovi (supra) and in your case the appropriate scale starting is category 3 in murder as applicable, given your facts and the circumstances. In particular I consider it aggravating where you cut a defenceless person who was not expecting the attack. Life must be protected and the court will do its duty to ensure by stiff and deterrent sentences facts warranting such that an inadequacy in the sentence as is indicative of error or departure from principle is avoided, APP v Haha [1981] PNGLR 205. It is a very serious and prevalent offence committed by youthful offenders and your case does not present any special circumstances to treat you separate and apart from the range and tariff of this offence: APP v Mailai (supra)
    
22. Your case is not the same as Enn v The State [2004] PGSC 36; SC738 where there was a fight between the appellant and the deceased stopped and the appellant reignited and chopped off the neck of the deceased. He pleaded guilty and was sentenced to 20 years IHL. You did not fight with the deceased you attacked the deceased without warning killing him. Nor is your case likened to State v Mohavila [2006] PGNC 106; N3385 where during an argument over sorcery prisoner cut the deceased on his left hand. He retaliated and cut the prisoner on his left side of his head then retreated behind another and dropped the knife. Prisoner picked up the knife and cut deceased on the forehead twice from which he died. The court imposed life imprisonment. You were never in any argument with the deceased nor were you in a fight with the deceased. You were not challenged or provoked to a fight as in State v Harisu [2006] PGNC 137; N3168 where 22 years was imposed. Nor were you in a similar situation as Nimagi (supra) or State v Hagei (supra) crimes were committed in the course of which death of the victim perpetrated.
    
23. You took a life as if you had removed a wrapping off a consumable. The court will sentence according to the facts before it. Life must be protected, life is sacred and the guaranteed by Constitution. You are sentenced for the crime of murder to 26 years IHL.
    
24. I order that the time in custody is deducted forthwith.
    
25. You will spend the balance in jail.
    

Orders accordingly.
__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant